The general position in criminal law is that a person cannot be held to be liable for failing to act, unlike someone who deliberately acts. This position is stated by May LJ in R v Miller 1 as unless a duty has been specified by statute or the common law imposes a duty to act in a certain way, then a mere omission to act with nothing more cannot make the person who fails to do something guilty of a criminal offence. However, there are particular categories where liability for an omission can accrue, which will be discussed below, together with various legal academic views either for or against the imposition of a broader form of liability for omissions.
Examples of statutes containing terms which provide that a person is guilty if a consequence occurs for either an act or an omission include section 85 of the Water Resources Act 1991, which states that a person is guilty if he causes or knowingly permits a poisonous or noxious substance to enter ‘controlled waters’. The Law Commission in its Draft Criminal Code of 1989 states that death caused by such an offence can be caused by an omission 2. In common law, certain obligations have lead to statutory enactments. An example is R v Gibbins and Proctor 3, in which a man and his cohabiting partner deliberately withheld food from the child for whom they had responsibility for, and were held guilty of murder 4. The trial judge found that the couple did so with the wilful and deliberate intention to weaken and cause her grievous injury 5. uch cases have led to section 1 of the Children and Young Persons Act 1933, the definition of which includes neglect and abandonment as well as assault and ill-treatment for a person with custody or care of the child (wider than just natural parents) to be found guilty of a misdemeanour. The qualification of this rule is where the parents or carers take appropriate action to avoid this duty, such as putting into children into foster care.
The first important category to consider involves duties arising from a contractual duty. Examples include R v Haines 6, where the ground bailiff failed to ensure proper ventilation of the mine, and the court held that is a person was killed as a result of this failure, he could be held guilty of manslaughter by omission. The test was whether a person using reasonable diligence would have carried out his duty.